Stealing photographs for fun and profit – snappers respond

Adopt and die

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Imagine finding a car outside your house, with no numberplate, but with the keys in the ignition and the engine running.

Few of us would seriously think about climbing in for a joy ride. Few of us would suppose that the lack of a numberplate turns the unattended car into public property; we know that sooner or later, if we took it for a spin, there would be repercussions.

Visual artists such as photographers and illustrators find themselves in a position similar to the owners of a car fleet that mostly has no numberplates. Most of the photos and illustrations washing around on the interwebs are "orphan works", even very famous ones, as they have no attribution or identification attached. And although the law is quite clear about usage, which obliges the potential user of a photo to discover the owner and obtain their permission, with no contact information (or out-of-date contact information) many users of the art just don't bother.

Naturally there are powerful vested interests who want to make it even easier to acquire this property, minimising the expense of finding out who the property owner is – and paying them. Especially paying them. These forces range from multinationals such as News International and the BBC, Google and Facebook, to Big Culture institutions on a mission-creep. (You've never heard of a bureaucracy that abolishes itself – and you won't find a library or museum that doesn't want to turn itself into an uber-publisher or New Age licensing authority).

It's hard to keep your rights information intact, when big media removes it by default. The BBC strips out all metadata on photographs as they're uploaded to its website, for example. It's an automated orphan-creation mechanism.

But because orphan works don't matter too much to the movie or music industries (who do most of the copyright lobbying), the issue has slithered along, without much challenge.

Even veteran copyright-antagonist Professor Lawrence Lessig finds some of the proposals that weaken the creator's claims over orphans to be a step to far. One recurring idea to let big business users off the hook comes in the form of "reasonable search". If they can show they've made some attempt to find the author, but come up empty handed, they can use it. In response to such a proposal in the US, Lessig wrote that, "photographers and other existing copyright holders are right to be outraged at the proposal. Hiding under the cover of 'reasonably diligent search', much of their work will be — unfairly — threatened.'"

"When a work is designated as 'orphaned', it suffers a relative loss of 'parental control', and such a work might be taken "into care" by the government, collecting societies, or other organisation," writes Professor Suthersanen. She canvassed views. Here's the response from the photographers' group Stop43.